The U.S. Supreme Court heard oral arguments today in its biggest Second Amendment case in over a decade. After nearly two hours of questions, discussion, and debate, a majority of the Court seemed ready to recognize at least some sort of Second Amendment right to carry a concealed weapon for purposes of self-defense outside of the home. What was less clear was whether the Court would recognize a limited right or a more sweeping one in its final decision on the matter.
At issue in New York State Rifle & Pistol Association v. Bruen is the constitutionality of a state law requiring anyone seeking a license to carry a concealed handgun in public to first satisfy a local official that he has "proper cause" to do so. According to the state, a "generalized" wish to carry a concealed weapon for self-defense purposes is not sufficient to meet the proper cause standard.
Justice Brett Kavanaugh seemed particularly troubled by how much discretion that standard places in the hands of local licensing officials. "That's the real concern, isn't it?" Kavanaugh said to New York Solicitor General Barbara Underwood. "With any constitutional right, if it's the discretion of an individual [licensing] officer, that seems inconsistent with an objective constitutional right." And why, Kavanaugh also asked, "isn't it good enough to say I live in a violent area and I want to defend myself?"
Justice Amy Coney Barrett pressed Paul Clement, the lawyer for the gun rights side, to explain what sort of regulations would pass muster under his approach. "If you concede, as I think the historical record requires you to, that the states did outlaw guns in sensitive places," Barrett asked Clement, how do we determine what counts as a sensitive place? One of the big questions here, Barrett said later, is "how can the state fairly regulate. Because everybody agrees there have to be some regulations and it might not always be the case that we can find exact historical analogues" to guide the way.
Justice Clarence Thomas asked Underwood whether New York's position wasn't too one-size-fits-all for the state's many varied residents. "It's one thing to talk about Manhattan" and to talk about forbidding the carrying of guns on the campus of New York University, Thomas told the state's solicitor general. "It's another to talk about rural upstate New York."
Clement seemed to acknowledge at one point that Thomas' rural vs. urban distinction would allow his individual clients, who live in upstate New York, to prevail while at the same time letting the Court avoid issuing a broader Second Amendment ruling that also impacted gun control in New York City.
Kavanaugh's focus on the discretionary nature of New York's licensing scheme also pointed the way to a narrower win for the Second Amendment side. In effect, the Court might say that constitutional rights deserve better treatment than a discretionary state regime like this one and then tell New York to go back to the drawing board.
A decision in New York State Rifle & Pistol Association v. Bruen is expected by late June 2022.